Wisconsin needs 215 more prosecutors, study says

Apr. 10, 2013

Sheboygan County District Attorney Joe DeCecco leafs through a stack of documents Monday April 1, 2013, before he heads to court. / Bruce Halmo/Gannet Wisconsin Media

Caseload study shows need for prosecutors

The assertion that Wisconsin is short on prosecutors comes from a weighted caseload formula, which factors in the time typically required by various types of cases and the number of those cases each county has. There is a lag in calculating the workload data, so the latest study uses 2012 staffing levels but workload information from 2007-09, according to the State Prosecutor’s Office. The formula is viewed with incredulity by some, including State Sen. Glenn Grothman, R-West Bend, who chairs the Senate Committee on the Judiciary and Labor. Grothman said he is “always highly suspicious of a group that commissions a study and says they’re understaffed.” Similar doubts six years ago prompted a study by the nonpartisan Legislative Audit Bureau, which found the formula is “consistent with nationally accepted practices for measuring prosecutorial workloads.” The formula was created in 1994 and has been periodically updated since to reflect changes in the types of cases handled and the time required. Formula changes for the 2012 study were a key reason the estimated prosecutor shortage rose from 98 in 2010 to 215 in 2012. The changes — approved by the Wisconsin District Attorney’s Association Board — included increasing the time for reviewing cases referred by police but not prosecuted from 35 to 100 hours per year and raising the time estimates for homicides, misdemeanors, criminal traffic and juvenile delinquency cases. David LaBahn, president and CEO of the Association of Prosecution Attorneys in Washington, D.C., said few states have done a prosecutor staffing study like Wisconsin, and varying structures make comparisons difficult if not impossible. Some states use city prosecutors to handle misdemeanors, municipal courts are used to varying degrees and funding sources and oversight are also dramatically different between states. Eric Litke, Gannett Wisconsin Media Investigative Team

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Sheboygan County prosecutors operate “like a MASH unit,” says District Attorney Joe DeCecco, whose staff numbers half what the caseload requires, based on the latest state analysis.

District attorneys in Brown, Ozaukee and Winnebago counties have each used the term “triage” to describe their offices in separate interviews during the past year.

Demands on prosecutors throughout the state are rising, but prosecutor staffing is going in the other direction, falling from 444 county-level positions in 2002 to 429 last year. Lawmakers are lauded as tough on crime for implementing harsher penalties or funding police work, but prosecutors say their role in the justice system continues to be overlooked.

“People don’t realize that (police) can do the best job in the world; if we can’t do our job, then all that’s for nothing,” DeCecco said. “We’re at the end of that chain of prosecution. Nothing gets filed in court until we file it, no matter how many arrests they make.”

Statewide, 215 more prosecutors are needed, meaning staffing is at 67 percent of what it should be, according to an analysis by the Wisconsin State Prosecutor’s Office. That’s up from a shortage of 98 positions in 2010, before the weighted caseload formula used to determine need was adjusted to more accurately reflect the time required by various types of cases.

The analysis shows all but five of Wisconsin’s district attorney offices are understaffed, half are operating with less than 60 percent what their caseload requires, and 10 are below 50 percent.

Ozaukee County District Attorney Adam Gerol, president of Wisconsin District Attorney’s Association, said the Internet, DNA and other technological advances have increased the complexity and time required for cases, and the growing use of warrants and subpoenas means prosecutors are more involved in the investigative process. Prosecutors say that legislators have exacerbated the problem by adding requirements and toughening laws without funding more prosecutors to handle the additional work.

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Offices throughout the state are feeling the impact.

Brown County District Attorney David Lasee said in February that accused drug offenders are remaining on the street as long as nine months after their alleged crimes, their cases delayed due to a backlog of more than 500 drug cases in his office.

Winnebago County District Attorney Christian Gossett said in 2010 that understaffing was part of why he chose not to file charges against a college dean arrested for allegedly trying to run his wife off the road with his car.

And a fatal crash case resolved in 2010 took seven years to conclude because DeCecco forgot about it after setting it aside in favor of more pressing cases. The 2003 case — in which a Fond du Lac man struck a tree while traveling more than 117 mph, killing a passenger — was left untouched until a reporter brought it to DeCecco’s attention in 2008.

Staffing level has array of consequences

Prosecutors interviewed for a 2007 staffing study by the nonpartisan Legislative Audit Bureau study said rising caseloads resulted in less timely prosecutions, more decisions not to prosecute cases and settling cases out of court with lighter penalties.

The list has only grown since.

Laurie Anderson, Jefferson County victim/witness program coordinator and president of Wisconsin Victim Witness Professionals, said delays caused by understaffing can take a heavy toll on victims. Since defendants in custody are required to make a court appearance within 48 hours, they get the priority and force other cases to the bottom of the pile. The delay can be months, or a year or more.

“You’ve got little kids whose memories fade over time, and it prolongs the amount of time that sexual assault victims or homicide families have to deal with us intruding into their lives in very personal ways,” Anderson said. “To see that system bogged down that way, it’s all secondary trauma to these victims.”

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Among the 20 counties with the heaviest caseload, only two are above 67 percent of the recommended staffing — Milwaukee County, at 96 percent, and Marathon County at 72 percent. The lowest are Wood County at 40 percent, Sheboygan County at 49 percent and Brown County at 50 percent.

DeCecco, a prosecutor in Sheboygan County since 1989, said his office has been at the breaking point for years. He floated a variety of proposals when additional cutbacks were threatened, including holding a brat fry when plans called for county funds to be reduced in 2006; stopping prosecutions of some misdemeanors when state layoffs were threatened in 2010; and temporarily stopping the handling of criminal cases on Fridays when the state planned to cut all prosecutors to 80 percent for six weeks in 2011.

The threatened cuts did not take place, so none of DeCecco’s plans came to fruition.

“It puts a big stress on the staff,” DeCecco said. “We’ve been living with it for years, and it’s just getting worse and worse.”

In Stevens Point, Portage County District Attorney Louis Molepske said the high caseload also leads to burnout. Combined with the lack of pay progression in recent years, it creates a revolving door — particularly among younger prosecutors.

Statewide, 132 district attorneys and assistant district attorneys have left their posts since January 2011 — more than 30 percent, according to the Department of Administration. That includes at least one prosecutor from 43 of the 71 offices (the state has 71 district attorney offices since Shawano and Menominee counties are combined).

Molepske said limited staff means he can’t spare the time to send staff for training and prosecutors can’t develop specialties, which puts them at a disadvantage in the courtroom.

“Everybody has to know enough about every kind of law to take whatever case is assigned to them,” Molepske said. “When we prosecute OWI cases, we’re going against defense counsel who maybe that is their only type of case they try.”

A January 2011 study by Adam Gershowitz and Laura Killinger in the Northwestern University Law Review noted there has been little study of prosecutor staffing nationwide, although underfunding of indigent defense has attracted dozens of scholars. Their study said unrealistic caseloads force prosecutors “to commit malpractice on a daily basis” and cause court backlogs, bottom-line plea bargains, unnecessary incarceration of defendants awaiting trial and minimal interaction with crime victims.

Gerol noted the state-run public defender system has case limits designed to keep workloads reasonable, but prosecutors have no such protection.

“In the DA’s office you’ve just got to absorb it,” he said. “When you’re working an Internet fraud or identity fraud case, you’re making triage decisions and you’re doing the tough ones (instead of lesser cases).”

David LaBahn, president and CEO of the Association of Prosecution Attorneys in Washington, D.C., said the general standard for prosecutor staffing is one per 10,000 people, though crime rate, colleges, transportation and other factors can affect the need in a given community. Only 11 Wisconsin counties have at least 0.95 prosecutors per 10,000 residents. Ten have less than 0.5 prosecutors per 10,000.

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“If they don’t have at least one per 10,000, they’re sinking,” LaBahn said.

No prosecutor additions planned

Gov. Scott Walker said last week he didn’t know the specifics of the prosecutor staffing analysis but said his 2013-15 budget includes pay progressions for assistant district attorneys to help limit turnover. He said the District Attorney’s Association told him that was a higher priority than additional positions at the moment, an assertion Gerol confirmed.

Although Walker’s proposed budget includes no additional prosecutor positions, he said prosecutors are a key part of the criminal justice system, tasked with deciding which defendants to pursue aggressively and which to find alternatives to jail.

Walker spokesman Cullen Werwie said in an e-mail that Walker is “open to adding DA positions in the future, but additional positions would need to be considered in the scope of a future budget.” He noted the number of state-funded prosecutors — 380 — has been consistent through Walker’s tenure.

The number of prosecutors fell under prior administrations, with 7.5 full-time equivalent prosecutor positions cut in the 2001-03 budget and 15 more trimmed in the 2003-05 budget.

State Sen. Alberta Darling, co-chair of the budget-writing Joint Finance Committee, said funds are limited and education is a priority.

“When you have to balance education with (spending) more for prosecutors, education will usually triumph,” said Darling, R-River Hills, speaking Monday outside a budget hearing in Green Bay.

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State Rep. Joel Kleefisch, chair of the Assembly Committee on Criminal Justice, acknowledged the Legislature needs to “be mindful” of the impact crime legislation has on the court system.

The Legislature has examined the staffing issue in the past, but without follow through. The legislature convened a Special Committee on District Attorney Funding and Administration in 2006, but it permanently adjourned after two meetings with no recommendation.

Prosecutors have clamored for more, but Molepske — a Democrat who served in the Legislature from 2003 until this year — said they lack advocates at the state level. Prosecutors are overseen by the Department of Administration so they have no secretary or equivalent position of power.

Portage County has written a letter to the DOA for the last 17 years asking for more staff, and the county has never gotten a reply, Molepske said. The latest letter, sent in August, notes the number of case referrals from law enforcement has more than doubled since 1990 while the number of prosecutors has remained unchanged.

In the 2011-13 budget cycle, 42 of the 71 district attorneys sought additional prosecutor positions, but none were added, according to the DOA. Only 25 requests were filed for the 2013-15 cycle, with DeCecco among those who said he didn’t bother filling out the 12-page form given the historic lack of response.

“Some members of the public and some members of the Legislature ... they don’t understand, I don’t think, how critical our job is to the whole criminal justice system,” DeCecco said. “It’s frustrating. People say, ‘We support our local police, but, hey, you (prosecutors) work harder, be more efficient.’”